Photo Description: From left, Lieutenant Clint Lorance, Major Mathew L. Golsteyn, Chief Petty Officer Edward Gallagher.
Photo Credit: Sandy Hyffaker/ Getty Images
By Leah Bordlee
President Trump’s decision to pardon two U.S. servicemen and restore the rank of another has effectively undermined the U.S. military judicial system. The three U.S. service members were accused of war crimes for killing civilians or prisoners hors de combat, a legal term meaning ‘outside’ of combat. Major Mathew L. Golsteyn killed and burned the body of a suspected Taliban bombmaker that was scheduled for trial in February. Lieutenant Clint Lorance issued an order for his platoon to open fire on civilians riding motorcycles who, according to the testimony of his platoon, posed no direct threat. Former Chief Petty Officer Edward Gallagher was demoted for posing for a photograph with the dead body of an Islamic State detainee. The decision to pardon Golsteyn and Lorance and restore Gallagher’s rank has greater implications for international law.
These pardons bear the question of would these servicemen had been pardoned if the victims of their crimes were white. It can be perceived that Trump’s decision to pardon the servicemen was guided by his dislike of Islam and the Muslim community. In a March 2016 interview Trump stated, “I think Islam hates us”. Further evidence can be found for this claim through his actions to attempt to institute a total Muslim ban. Trump’s decision to issue these pardons may further be guided by the need to appeal to his base at a time when he is receiving ample negative press surrounding the ongoing impeachment hearings. The Trump base, according to the Brookings institute, has a clear intolerance for Islam. Suggesting, this decision will likely be received well by his base.
In a press briefing the U.S. White House Press Secretary stated the President “is ultimately responsible for ensuring that the law is enforced and when appropriate, that mercy is granted.” There is no denying that a U.S. President has the authority to pardon individuals of their crimes; however, what is more important is the broader implications of these pardons. The White House recalled President Trump’s statement, “when our soldiers have to fight for our country, I want to give them the confidence to fight.” However, the military officers, had no justification for their wrongdoings because they were not operating within a combat zone, nor were their actions in line with U.S. security interests.
The 1949 Geneva Convention, which the U.S. has signed but not ratified, directly prohibits the killing of civilians and prisoners of war. However, these prohibitions are largely considered to be part of customary international humanitarian law. In 1987, Theodor Meron, a presiding judge of the Appeals Chambers of the International Criminal Tribunal for Rwanda, writing for the American Journal of International Law, pointed out that the 1949 Geneva Convention is binding on more states than the U.N. Charter. Additionally, war crimes are explicitly forbidden in the U.S. military under the War Crimes Act of 1996, which directly recognizes war crimes to be understood by the definition provided in the 1949 Geneva Convention. This means that the U.S. would not have to ratify the 1949 Geneva Convention for U.S. service members to be held responsible for the acts recognized internationally as illegal.
President Trump’s decision to issue these pardons openly invites international courts, such as the International Criminal Court (ICC), to try these servicemen under international criminal law. In the cases of Major Golsteyn and Lieutenant Lorance, the crimes occurred in the territory of Afghanistan, a state party to the ICC meaning the conduct falls within the court’s jurisdiction. The ICC’s jurisdiction is limited in that it cannot try individuals if the offenders are already being charged in domestic courts. However, if the investigation or case is not being tried seriously, the ICC has legal jurisdiction to try these individuals. There could be a substantial legal argument made that the clemency given to these individuals constitutes the case to be tried under the ICC’s jurisdiction.
No U.S. service member has been charged for war crimes under international law by an international court, partly because of the U.S. perception of the court as illegitimate and U.S. reservations over the extent of the court’s jurisdiction. This can be observed from the court’s most recent decision on April 12, 2019 not to try the U.S. for war crimes committed in Afghanistan based on the fact that the prevalent actors and authorities likely would not cooperate. Furthermore, in April 2019 the U.S. revoked the visa of Fatou Bensouda, the prosecutor for the ICC and Secretary of State Mike Pompeo threatened to revoke visas of those in connection to the court’s investigation in Afghanistan and even threatened economic sanctions against the court. The pardons send a message to service members of other states, that the decision to use force does not need to be sidelined by concerns surrounding war crimes and international humanitarian law.
Humanitarian laws are only as strong as their reciprocal nature bears, meaning that states are bound equally to their obligations under international law. States comply with international humanitarian law due to the expectation of reciprocity, among other things. If the U.S. absolves itself from these obligations, they are sending an open invitation to other states to allow their service members to commit war crimes, endure the judiciary systems of domestic or military courts, and then eventually pardon them of these crimes. Further, the April 12 decision by the ICC suggest that states can choose to consent to the court’s jurisdiction. This is a further invitation for war crimes to be committed by other members of armed forces. This would directly put U.S. service members under a security risk abroad, whether they be prisoners of war or injured soldiers no longer taking active part in hostilities. Further, it could put U.S. citizens abroad, who may be providing administrative support to U.S. foreign policy and who are also taking no active part in hostilities at risk of being injured by opposition forces. The implications of this decision undermine the prohibition of war crimes, making armed conflict increasingly dangerous for civilians and soldiers everywhere.
Leah Bordlee is from New Orleans, Louisiana and is a first-year graduate student at the School of Diplomacy and International Relations at Seton Hall University. She received her Bachelors’s in Political Science from the University of New Orleans. During her undergraduate studies, she participated in Model United Nations for two years, participating in the national conference in NYC and an international conference in Xi’an, China. In 2018, she did research through a Tolmas Scholar Grant studying the impact of impartiality and neutrality on the humanitarian organization Medecins Sans Frontieres within conflict zones in the Middle East. She has also interned for the limited-profit School Food Solutions, doing work to help ensure schools around the country receive their federal funding to provide free and reduced lunches to children in need.